Law Enforcement—An Attempt at Social Dissection

Abstract

Courts are never able to live up to the standards set for them by legal scholars. We know that the standards of certainty for legal statement, set by the traditional legal scholar, will never be fulfilled. We also know that the requirement of universal understanding of the diverse problems confronting courts, insisted upon by the realist, is equally impossible. Yet it seems to be the general opinion that we should keep on criticising courts in the light of these unattainable ideals. If the frailty of human nature and the ingenuity of the trial lawyer or politician prevent our ever reaching them, that is no reason why scholars should give up the struggle. To the scholar belongs the evangelical task of making judicial conduct conform to judicial ideals by preaching and by formulating these ideals. To the trial lawyer and politician is left the practical task of twisting these ideals to conform to judicial conduct. Thus the scholars rule supreme in the law schools, only faintly annoyed by the politicians. The politicians and practical lawyers operate the courts, avoiding direct opposition to scholarly ideals without much difficulty. Two possible explanations why scholars are ineffective in controlling courts suggest themselves: (1) the standards by which scholars judge courts may be wrong; (2) their criticism and reforms may be misdirected. We shall examine these possibilities in connection with one of the most unattainable, yet most persistent of these ideals—the ideal of Law Enforcement.